Writing in the immediate aftermath of the adoption of new constitutions in
central and eastern Europe, Cass Sunstein characterized the inclusion of
social and economic rights in those constitutions as “a large mistake, possibly
a disaster.”1 For Frank Cross, “reliance on positive constitutional rights is an
ultimately misguided plan.”2 These statements are merely representative of
the common wisdom among U.S. constitutional scholars, and are occasionally echoed elsewhere. South African Constitutional Court judge Albie Sachs
describes the primary objection to including social and economic rights in
constitutions as resting on questions about the capacity of courts to enforce
such rights.3

Justice Sachs's observation is plainly accurate, as I will show. And yet, the
concern about judicial capacity needs more elaboration than it usually gets,
for two reasons. First, the discussion in the preceding chapters shows that the
doctrines of state action and horizontal effect (whether direct or indirect) are
also about the judicial enforcement of social and economic rights. Every constitutional court finds state action or gives some horizontal effect to constitutional provisions on some occasions where doing so calls into question the
background rights of property, contract, or tort and thereby enforces some
vision of social or economic rights. Yet, no one raises serious questions about
the capacity of courts to develop and enforce a state action or horizontal effect
doctrine. The first section of this chapter expands on this observation by discussing several areas of U.S. constitutional law in which the courts in effect
displace the background rules in the service of constitutional values, again
without controversy over their capacity to do so (however controversial particular decisions might be).

On analysis, the concern over judicial capacity turns out to be a concern
about the ability of courts to coerce the political branches into making
substantial changes in background rules, typically by large programs of social
provision that require significant alterations in the distribution of wealth by
means of taxes and transfer payments. That concern, though, rests on the

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